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Namibia - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Namibia - 2013    

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Obligation to provide reasons to the employee: Yes
  • Sec. 30(3) LA: the reasons for termination must be indicated in the written notice of termination.

Valid grounds (justified dismissal): any fair reasons
  • Sec. 33(1) EA: An employer must not, whether notice is given or not, dismiss an employee -
    (a) without a valid and fair reason; and
    (b) without following the procedures set by the LA in case of redundancy; or, subject to any code of good practice, a fair procedure, in any other case.

Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; race; colour; sex; religion; political opinion; social origin; trade union membership and activities; disabilities; financial status; exercise of a right; HIV status; ethnic origin
  • sec. 33 (2) LA lists the cases of unfair dismissals, which occur:
    - because the employee discloses information that he or she is entitled or required to disclose to another person;
    - for the reasons related to an employee's lawful trade union activities,
    - because of the exercise of any right conferred by the LA or the terms of the contract of employment; or
    - because the employee fails or refuses to do anything that an employer must not lawfully permit or require an employee to do.
    In addition constitute an unfair dismissal any dismissal based on: sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion and marital status (sec. 33(3) LA)
    See also sec. 5(2) LA which forbids employer to discriminate employees in any decision, which includes termination, on account of family responsibilities, degree of physical or mental disability, AIDS or HIV status; or previous, current or future pregnancy (in addition to the above-mentioned grounds listed in sec. 33(3))
    The dismissal of an employee for disciplinary reasons in contravention of sec. 33 LA constitutes an unfair labour practice (sec. 48 LA).
    On maternity leave, see sec. 26(5) LA.

Workers enjoying special protection: pregnant women and/or women on maternity leave
  • See sec. 26(5) LA: An employer must not dismiss an employee during her maternity leave or at the expiry of that leave on:
    - economic grounds (as listed in sec. 34 on collective dismissal)
    - any grounds arising from her pregnancy, delivery, or her resulting family status or responsibility.
    The prohibition does not apply if the employer has offered the employee comparable alternative employment; and she has unreasonably refused to accept that offer.